The recent adoption of a “corrective” amendment to Federal Rule of Evidence 702 ensures the strength of expert testimony in civil and criminal cases, and one prominent business defense attorney is committed to see that judges follow it.
Lee Mickus, partner in the Denver office of Evans Fears Schuttert McNulty Mickus, told the Cook County Record, that the amendments adopted in December 2023 by Congress and the U.S. Supreme Court instruct judges to follow the preponderance of evidence standard to determine the admissibility of expert opinion.
“It calls for judges to adhere to their roles as gatekeepers and not punt to juries to determine the reliability of expert witnesses,” Mickus said. “This means more thorough screening and potentially more experts being excluded.”
He added that the amended rule could be a “kill shot” for lawsuits that are based on bad science and brought against American businesses.
“Without liability experts, the plaintiff lawyers have no case,” he said.
In a paper, “The First 100 Days of Amended FRE 702: The Good, the Bad, the Ugly, and the Next Steps,” published in April in the Washington Legal Foundation Mickus wrote that the early results of the rule change “have been mixed.”
Some courtrooms are following the preponderance standards in scrutinizing the proposed experts’ testimony, he wrote.
Other decisions overlook the requirement that the judges and not the juries meet the requirements enumerated under the rule.
“Finally,” Mickus wrote, “a number of orders simply ignored the most visible aspect of the amendments—bringing the preponderance standard into the text of Rule 702 itself—and instead evaluated admissibility challenges with the view that courts should decide admissibility using a different scale, one that prefers admission and reserves exclusion for exceptional situations.”
One case that stands out is a January opinion in Blue Buffalo Co. v. Wilbur-Ellis Co. in the U.S. District Court for the Eastern District of Missouri. Blue Buffalo is a manufacturer of natural pet foods.
“Most directly, and most problematically, some judges declared that Rule 702 ‘favors admission over exclusion,’” Mickus wrote in citing the Blue Buffalo case. “In this mistaken conception, ‘[t]he rule presents a high bar, and the Court is to resolve disputes in favor of admission.
Separately, Blue Buffalo reached a $32 million settlement in 2016 over claims its food contained poultry products. The company denied any wrongdoing, saying it settled to avoid additional legal fees.
Mickus is working with Lawyers for Civil Justice (LCJ) – he co-chairs their Rule 702 committee – and other legal reform groups to ensure that the amended rules are being followed.
LCJ established a website “dontsaydaubert.com” to educate the legal community about the rule change, and advocate for expert testimony reform before judicial rulemaking committees and state legislatures.
Daubert refers to a 1993 U.S. Supreme Court decision, Daubert v. Merrell Dow Pharmaceuticals. Since that ruling, Daubert “has become shorthand for the standard by which expert evidence is evaluated for admissibility before a federal jury,” according to the don’tsaydaubert website.
But, the website cautions that Rule 702, “and its state equivalents, not Daubert, set the standards that courts must follow in determining whether expert testimony is admissible.”
